Four of the largest record companies failed in their attempt to get the Irish High Court to enforce the “three strikes” rule against illegal filesharers in Ireland. In a judgment delivered by Mr. Justice Charleton in the High Court Commercial in Dublin on 11 October 2010, in a matter entitled EMI Records (Ireland) Limited, Sony Music Entertainment Ireland Limited, Universal Music Ireland Limited, Warner Music Ireland Limited and WEA International Incorporated vs. UPC Communications Ireland Limited, Case No. 2009 No. 5472 P, the High Court declined an application made by the record companies for an injunction against UPC Communications Ireland Ltd. that would have required the ISP to identify and disconnect internet users accused of infringing upon the copyright in sound recordings owned by the plaintiffs. The case was the culmination of a series of legal initiates taken by the recording industry in its drive to prevent illegal peer-to-peer file sharing by means of the internet. The decision not to grant the injunction leaves Ireland seriously out of step with European copyright laws and undermines a settlement reached in an earlier case brought against Eircom Limited, Ireland’s largest internet provider.

After a number of cases had been brought against individual file sharers, the record companies took a different tack and sought to impose upon ISPs a “three strikes” or “graduated response” policy in which persons found to be file sharing would receive two warnings and then be cut off from the service if they continued to infringe on the copyrights of the music industry. The ISPs resisted adopting the “three strikes” policy, and after protracted unsuccessful negotiations, IRMA, the Irish Recorded Music Association, initiated proceedings against Eircom Limited. The case was settled in 2008 when Eircom Limited agreed to adopt the policy if IRMA agreed to commence proceedings against the other ISPs, including UPC Communications Ireland Limited.

Proceedings were duly commenced against UPC, and the case proceeded to trial. During the course of the hearing a great deal of evidence was heard about the damage being done to the music and film industries by illegal file sharing. The Court conceded the merits of the labels’ case and warned that the inadequacies of the wording in current legislation means Ireland is not in line with European law. Piracy, he said, “not only undermines [the labels’] business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry.”

However, notwithstanding the fact that copyright infringement had taken place and that UPC had been given notice of the infringements and the IP addresses of the infringers, the Court held that the question of whether or not an injunction could be granted on the terms sought depended solely upon the wording of the Copyright and Related Rights Act 2000 (the “Act”). And, since the “legislative response laid down in our Country [the Act] has made no proper provision for blocking, diverting or interrupting of internet communications intent on breaching copyright,” the Court could not grant the requested injunction.

The Act was passed in Ireland to consolidate the copyright law and give effect to new European Community legislation including the E-Commerce Directive 2000/31 of 8 June 2000. Although the Directive contemplated courts being given the power to order the termination or prevention of an infringement, as well as the removal of infringing material, Section 40(4) of the Act only referred to the removal of infringing material.

The Judge consequently ruled that although the power to block access to internet sites, to disable access, to interrupt a transmission to divert a transmission and to cut off internet access was available in the United Kingdom and other European countries, and despite his strong desire to grant the requested injunction, the right to suspend service to customers suspected of internet piracy was not available under Irish law.

The Court concluded that:

“In failing to provide legislative provisions for blocking, diverting and interrupting internet copyright theft, Ireland is not yet fully in compliance with its obligations under European law. Instead, the only relevant power that the courts are given is to require an internet hosting service to remove copyright material. Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against internet piracy, even though that relief is merited on the facts.”

Given the requirement in the earlier Eircom case that IRMA negotiate or impose similar deals with the other ISPs so Eircom would not be economically disadvantaged in the marketplace, it is highly likely that the ruling will have a serious impact on Eircom’s willingness to enforce the “three strikes” policy, as required under the earlier settlement. It is also likely, that in light of the decision in UPC, that the Irish government will come under strong pressure to amend the current legislation to allow graduated policies like the “three strikes” policy to be imposed. In the meantime, internet users will steer clear of Eircom and peer-to-peer file sharing will continue in Ireland unabated.